Tangedal v. Mertens
2016 ND 170
| N.D. | 2016Background
- In January 2014 a septic tank collapsed on property the Tangedals purchased in 2009; they sued the sellers (Mertens), Lake Region District Health Unit, and Ramsey County alleging nondisclosure and negligent inspection/ certification of the septic system.
- Allen McKay, Lake Region’s Environmental Health Supervisor, inspected the septic at the time of sale and certified it “expected to function satisfactorily.”
- Lake Region and Ramsey County asserted governmental immunity under N.D.C.C. ch. 32-12.1; the County was dismissed and the Tangedals later settled with the Mertens.
- The district court denied the Tangedals’ motion to amend their complaint to add McKay personally (finding the amendment futile) and granted summary judgment for Lake Region on public-duty immunity grounds.
- The Tangedals appealed, arguing (1) the court abused its discretion in denying leave to amend to sue McKay personally for gross negligence/recklessness and (2) Lake Region was not immune for grossly negligent acts within the scope of employment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused its discretion in denying leave to amend to add McKay personally | Amendment should be allowed because recently discovered facts support gross negligence, so the claim would not be futile | Amendment is futile because public-duty immunity bars the claim and plaintiff cannot meet the clear-and-convincing standard for personal liability | Denial affirmed: amendment was futile because public-duty immunity applied and no special relationship was alleged |
| Whether Lake Region is immune for injuries caused by McKay’s inspection under N.D.C.C. § 32-12.1-03(3)(f) | Lake Region is not immune if McKay’s conduct was grossly negligent/reckless; statutory scheme should be harmonized to allow recovery for gross negligence despite public-duty language | Public-duty immunity applies; the only statutory exception is where a special relationship exists (per § 32-12.1-03(3)(g)) | Summary judgment for Lake Region affirmed: public-duty immunity applies absent a special relationship |
| Whether a government employee may be held personally liable for grossly negligent acts that occur during performance of a public duty | Plaintiff: employee personal liability for gross negligence under § 32-12.1-04(3) should override public-duty immunity for such conduct | Defendant: § 32-12.1-03(3)(f)/(g) and legislative history require a special relationship before piercing public-duty immunity; § 32-12.1-04 does not create a separate exception | Court harmonized statutes: employee may be personally liable for gross negligence only if a special relationship is first established; no special relationship here |
| Whether a special relationship existed between Tangedals and Lake Region | Tangedals implied a special relationship via the inspection done for a real-estate transaction | Lake Region: inspection was performed for the sellers/real estate agent; no direct affirmative undertaking or justifiable reliance by Tangedals | No special relationship found (invoice identified the real-estate customer); immunity therefore applies |
Key Cases Cited
- Kitto v. Minot Park Dist., 224 N.W.2d 795 (N.D. 1974) (abolished traditional governmental immunity for political subdivisions)
- Ficek v. Morken, 685 N.W.2d 98 (N.D. 2004) (discussed public-duty doctrine and declined judicially to adopt it as immunity without legislative action)
- Binstock v. Fort Yates Pub. Sch. Dist., 463 N.W.2d 837 (N.D. 1990) (employer and employee may be jointly liable when employee acts recklessly or with gross negligence within scope of employment)
- M.M. v. Fargo Pub. Sch. Dist., 783 N.W.2d 806 (N.D. 2010) (summary of § 32-12.1-03’s two bases for political-subdivision liability)
- Davidson v. State, 781 N.W.2d 72 (N.D. 2010) (summary judgment standards and framework)